Wednesday, August 24, 2011

3d DCA Watch -- Rules Are Stubborn Things Edition.

Did you realize that standing up, raising your hands and exclaiming "IF YOU KNOW" in a loud, really obvious way after a question is posed to your client at a deposition could somehow be construed as coaching?

What, little 'ole me? I was just clearing my throat.

But PA attorney Max Kennerly in a fine article here thinks obstructing the deposition any way you can in order to save your client from telling the truth may not be permissible after all:

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial
under the Federal Rules of Evidence …” If an attorney has an objection
to a question, then what they must do is also quite clear under Fed. R.
Civ. P. 30(c)(2):

An objection at the time of the examination–whether to
evidence, to a party’s conduct, to the officer’s qualifications, to the
manner of taking the deposition, or to any other aspect of the
deposition–must be noted on the record, but the examination still
proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner.
A person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation ordered by the court, or
to present a motion under Rule 30(d)(3).

That is to say, the defending attorney is indeed a “potted plant”
with only two exceptions: they can raise objections in a concise,
nonargumentative and nonsuggestive manner, and they can instruct a
deponent not to answer a question when necessary to preserve a privilege
or enforce a court order.

Could you imagine how depositions in South Florida would proceed if everyone simply abided by these rules?

(Then again, what fun would that be?)

Speaking of rules, our bunker buddies remind us this week that -- yes, they exist; and yes, you should probably follow them:

For all you fine jurists taking notes at home, here is the correct legal standard for reviewing a motion for judgment on the pleadings:

It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings—which includes consideration of exhibits attached thereto—and may only be granted if the moving party is clearly entitled to a judgment as a matter of law....In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false.

This is an unemployment appeals commission appeal in which the employee testified that she was sexually harassed and the employer did not participate:

Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.

What's that rule on unrebutted testimony again?

Oh yeah:

Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts.

27 comments:

Agree with Kennerly's article. The only thing out of defending attorneys' mouth, according to the rules, is a proper objection to form or instruction -- nothing else.

In my experience, defending attorneys typically give speaking/coaching objections and other speeches when (1) their clients are unprepared morons (usually in the PI, ERISA cases, etc.), (2) their clients are getting crucified, and/or (3) otherwise the examining attorney's doing a really good job.

I find that bringing the rule restricting objections to form/non-argumentative and reading from (the Southern District Local Rule is terrific) it on the record usually pisses the other guy off but shuts him up.

I always found the cutting of "over California" odd. I mean, you know it's California as soon as you see the movie. And plenty of Disney attractions transport you to a specific other geographic area. I mean, it's "Pirates of the Caribbean" no matter which park you're in!

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